THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused
himself, because from the very nature of these facts and from the circumstances surrounding the incident upon
which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the
defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence
touching those details of the incident as to which there can be said to be any doubt, the following statement of
the material facts disclose by the record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal
Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho.
"Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in
August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two
servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a
narrow porch running along the side of the building, by which communication was had with the other part of the
house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room
was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small
hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the room there was but one small window, which, like the
door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the
room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was
suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice,
"Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open
by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the
porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his
feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by
the edge of the chair which had been placed against the door. In the darkness and confusion the defendant
thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a
burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by
the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his
pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual.
Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the
defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to
his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up
Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one
of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was
because of these repeated robberies he kept a knife under his pillow for his personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms
prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door
and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a
walk with his friends, Celestino Quiambao and Mariano Ibañez, servants employed at officers' quarters No. 28,
the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and
Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party
separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting
on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the
impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite
defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the
boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing
his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he
was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died
from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple
homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the
minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but
insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of
self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant
circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to complete
exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the
door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one,
under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the
thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat
that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the
night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available weapon to defend himself from such an
assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first
blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor
his property nor any of the property under his charge was in real danger at the time when he struck the fatal
blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he
was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or
his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible
who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if
the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if
the actor had known the true state of the facts at the time when he committed the act. To this question we think
there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided
always that the alleged ignorance or mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a
particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus
furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except
in those cases where the circumstances demand a conviction under the penal provisions touching criminal
negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a
crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different
from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim.
Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596;
Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is
whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and
assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given
of these as well as most other crimes and offense therein defined, do not specifically and expressly declare that
the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the
actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the
actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of
the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the
general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the
Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient
of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal
intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express
provisions modifying the general rule, such as are those touching liability resulting from acts negligently or
imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act
committed is different from that which he intended to commit. And it is to be observed that even these
exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a
wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits
supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again,
"There is so little difference between a disposition to do a great harm and a disposition to do harm that one of
them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in
the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or
less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows
the same proportion; it is greater or less according as the crime in its own nature does greater or less harm"
(Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt
mid, is to be viewed the same whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall
appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though
the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article,
say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention
(intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and
includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the code
of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was
redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from
criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in the
absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of
this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we
have shown above, the exceptions insisted upon by Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no intention there
is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if
there is no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the
Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of
May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from
the operation of the will and an intent to cause the injury which may be the object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil
effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church,
there can be no crime because of the lack of the necessary element or criminal intention, which characterizes
every action or ommission punished by law; nor is he guilty of criminal negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence in the
commission of an act defined and punished by law as criminal, is not a necessary question of fact
submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various
crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article
568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would constitute a
grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision
correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or negligence
shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion, without being
subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or
less than those contained in the first paragraph thereof, in which case the courts shall apply the next one
thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the
direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of
malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word
"willful" as used in English and American statute to designate a form of criminal intent. It has been said that
while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently
understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it
signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in
contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing
lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad
purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious,"
"maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or
willfully," but "the difference between them is not great;" the word "malice" not often being understood to
require general malevolence toward a particular individual, and signifying rather the intent from our legal
justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it
be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think that reasoning from general principles it will always be
found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an
act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present
this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In
controversies between private parties the quo animo with which a thing was done is sometimes
important, not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence
of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or
mortal sentiment would any people in any age allow that a man should be deemed guilty unless his
mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the
essence of an offense is the wrongful intent, without which it can not exists. We find this doctrine
confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It
consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself
does not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an
act done by me against my will is not my act;" and others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate
or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let
the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on
the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its
jewels. In times of excitement, when vengeance takes the place of justice, every guard around the
innocent is cast down. But with the return of reason comes the public voice that where the mind is pure,
he who differs in act from his neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one deems
another to deserve punishment for what he did from an upright mind, destitute of every form of evil.
And whenever a person is made to suffer a punishment which the community deems not his due, so far
from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with
the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are
only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law,
superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is
to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286
to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract
justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law
excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the
same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of
cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer.
Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held
that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the
intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12,
p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real
departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the
evil purpose need not be to break the law, and if suffices if it is simply to do the thing which the law in fact
forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in
fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the
maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed
offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act
committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal
liability provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt
of the accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387;
P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb.,
625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to
say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is
to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the
effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the
intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts
which will justify a killing — or, in terms more nicely in accord with the principles on which the rule is
founded, if without fault or carelessness he does believe them — he is legally guiltless of the homicide;
though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In
other words, and with reference to the right of self-defense and the not quite harmonious authorities, it
is the doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions
apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself
correctly according to what he thus supposes the facts to be the law will not punish him though they are
in truth otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal
Law, sec. 305, and large array of cases there cited.)

The common illustration in the American and English textbooks of the application of this rule is the case where
a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of
mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken
belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are
in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer
believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal
liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly
be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of
the facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a
necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same
time the presumption established in article 1 of the code, that the "act punished by law" was committed
"voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious design
against him, and under that supposition killed him, although it should afterwards appear that there was
no such design, it will not be murder, but it will be either manslaughter or excusable homicide,
according to the degree of caution used and the probable grounds of such belief. (Charge to the grand
jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms
and a pistol in his hand, and using violent menaces against his life as he advances. Having approached
near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the
 instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder
only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more
criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine
must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the
pistol is loaded — a doctrine which would entirely take away the essential right of self-defense. And
when it is considered that the jury who try the cause, and not the party killing, are to judge of the
reasonable grounds of his apprehension, no danger can be supposed to flow from this principle.
(Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here
set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only
of his wife, without other light than reflected from the fire, and that the man with his back to the door
was attending to the fire, there suddenly entered a person whom he did not see or know, who struck
him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the
person and took from his the stick with which he had undoubtedly been struck, and gave the unknown
person a blow, knocking him to the floor, and afterwards striking him another blow on the head,
leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his
father-in-law, to whom he rendered assistance as soon as he learned his identity, and who died in about
six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed
the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his
sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal
responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article
8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal
aggressor, without sufficient provocation, and that there did not exists rational necessity for the
employment of the force used, and in accordance with articles 419 and 87 of the Penal Code
condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by
the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from
the facts found by the sentence to have been proven, that the accused was surprised from behind, at
night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without
being able to distinguish with which they might have executed their criminal intent, because of the
there was no other than fire light in the room, and considering that in such a situation and when the acts
executed demonstrated that they might endanger his existence, and possibly that of his wife and child,
more especially because his assailant was unknown, he should have defended himself, and in doing so
with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he
use means which were not rationally necessary, particularly because the instrument with which he
killed was the one which he took from his assailant, and was capable of producing death, and in the
darkness of the house and the consteration which naturally resulted from such strong aggression, it was
not given him to known or distinguish whether there was one or more assailants, nor the arms which
they might bear, not that which they might accomplish, and considering that the lower court did not
find from the accepted facts that there existed rational necessity for the means employed, and that it did
not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain,
February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the
city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8
paces, saying: "Face down, hand over you money!" because of which, and almost at the same money,
he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had
before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance,
finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am
ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his
friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility
as the author of this homicide, as having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but
only found in favor of the accused two of the requisites of said article, but not that of the
reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to
eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal
from this sentence, holding that the accused was acting under a justifiable and excusable mistake of
 fact as to the identity of the person calling to him, and that under the circumstances, the darkness and
remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme
court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone
thrown against his window — at this, he puts his head out of the window and inquires what is wanted,
and is answered "the delivery of all of his money, otherwise his house would be burned" — because of
which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same
spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-
defense with all of the requisites of law? The criminal branch of the requisites of law? The criminal
branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the
means, employed, and condemned the accused to twelve months of prision correctional for the
homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the
accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening
robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence
of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman
struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of
his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property
and of the property committed to his charge; that in view of all the circumstances, as they must have presented
themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief
that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he
believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he
can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake
as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe
threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant
acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de
oficio. So ordered.